Newsom v. Hart

Christiancy J. The horse having been taken trp by the minor son who was not a freeholder, in the absence of the father, and without his previous knowledge or consent, such taking, it is admitted, would have been illegal if left to stand upon the act of the son. But the subsequent acts of the father, who was a freeholder, in retaining and selling the horse as an estray, it is insisted, operated as a ratification, and rendered the act of the son legal, as the act of his father. The ratification is unequivocal, and so far as respects the father’s liability for the act, was equivalent to a prior command. But here the ratification is set up as the basis of a right to divest the plaintiff of his property; and the plaintiff seeking to make title through the father, the question is the same as if the action had been brought against the father, and he had sought to hold the property on the ground of the ratification. The power to divest another of his property by this summary and ex parte proceeding must be strictly pursued, and none of the safeguards which the statute has thrown around the exercise of the power can be disregarded. The statute has given the power only to “ any resident freeholder of any township to take up any stray horses, &c., by him found going at large in such township.” The object of the legislature in restricting the power to this class of persons we must suppose to have been to protect the rights of the owner of such property in every way that such a restriction might operate to that end. Other classes of persons might, as a general rule, be not only less able to respond for an abuse of the power, but less careful to inquire into the circumstances before exercising it; less discreet in making seizures, and more disposed to exercise the power under circumstances which would not call for its exercise, than freeholders against whom the same power might be exercised by their neighbors. [237] In this view, of the statute every owner is entitled, before his property shall be “taken up,” to have the benefit of the knowledge and information of the freeholder, and to the exercise of his personal discretion and judgment upon the circumstances of the case, and his personal decision thereon. That this would in fact have operated as a protection against the seizure in the present case, is very probable from the evidence of the father’s statement; but this is simply what the law would have presumed without this item of evidence. If the father seeing the property running at large, and observing and deciding for himself upon the propriety of taking it up, had directed the son merely to execute the act, this would have been the act of the father and not of the son, and the plaintiff would have had in this respect the protection which the statute intended to give Mm. But the propriety of the act was decided upon by the son, and the horse seized in the absence of the father, and without Ms knowledge or consent. The father had no right to substitute the information, judgment and discretion of the son for his own. The son was a mere trespasser; his act was illegal and void, and the subsequent ratification confirmed it only as such, as a void and illegal act, upon which no right to the property can be founded. — Story on Agency, §§ 241, 242; Harrison v. McHenry, 9 Geo. 164. The judgment of the Circuit Court must be affirmed, with costs of both courts. Campbell & Coolet JJ. concurred.